People v. Hickey

September 27, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,v.ARTHUR DALE HICKEY, APPELLANT.

The opinion of the court was delivered by: Justice Thomas

UNPUBLISHED

Agenda 5-March 2001.

Defendant, Arthur Dale Hickey, appeals an order of the circuit court of Will County dismissing his amended post-conviction petition without an evidentiary hearing and denying defendant's requests to review and to test certain evidence. Because defendant was sentenced to death for his underlying murder conviction, his appeal lies directly with this court. See 134 Ill. 2d R. 651(a). For the reasons that follow, we affirm the trial court's orders.

BACKGROUND

This court has previously set forth the evidence presented at defendant's trial in our opinion on defendant's direct appeal. See People v. Hickey, 178 Ill. 2d 256 (1997). Therefore, we discuss only those facts and evidence necessary to the disposition of this appeal. Defendant's convictions arose from the murder of Jeff Stephens and the sexual assault and attempted murder of Jeff's wife, Heather, on November 25, 1991. That morning, Jeff got up between 5 and 5:30 a.m. to go to work. He went downstairs to take the garbage out to the end of the driveway for pickup. Shortly thereafter, Heather heard yelling outside the house, followed by a gunshot. Heather got up and began putting on her bathrobe. As she was putting on her bathrobe, a man wearing a ski mask and holding a gun came into the bedroom, forced Heather onto the bed and tied her wrists to the bedposts. The man sexually assaulted Heather, then later shot her in the side of her face. Heather said that she tried not to look at her assailant while he was assaulting her because she was frightened.

Heather was never able to identify anyone as her attacker, although she initially told the police that her attacker was in his 20s, was between 5 feet and 5 feet, 4 inches tall, weighed 130 pounds, had medium length, stringy blond hair and no facial hair. At the time, defendant was 40 years old, 5 feet 6 inches tall, weighed 180 to 190 pounds, had a full mustache, and dark hair on his head with some grey in it. A composite sketch of the perpetrator was prepared based upon Heather's description. The officer that prepared the composite sketch testified that Heather was in a great deal of pain and was being treated for a gunshot wound at the time that she gave the description.

Heather viewed numerous photo lineups and mug shots following the assault, but never was able to identify her assailant. Defendant's photo was included in some of the photo lineups shown to Heather. Although Heather told the officer she thought she would be able to identify the perpetrator if she saw him, she also testified at trial that she was not certain of the man's hair color and was not certain whether he had facial hair. She explained that is was dark in the bedroom, she was under stress, and she was not wearing her glasses. Without her glasses, Heather could see up close but not far away.

Heather was taken to Riverside Medical Center in Kankakee, Illinois. A registered nurse collected samples from Heather for a rape kit, including vaginal smears on slides and swabs. The nurse also collected additional vaginal and rectal swabs. The samples, as well as Heather's underwear and Jeff's sweatshirt, were sent to the Illinois State Police's Joliet, Illinois, crime lab. The rape kit and Heather's underwear then were sent to the State Police's Metro East crime lab. There, blood and semen were detected on Heather's underwear, and semen was detected on certain vaginal and rectal swabs. After the samples from the rape kit and Heather's underwear tested positive for the presence of semen, they were sent to the State Police crime lab in Springfield, Illinois, for DNA testing.

David Metzger, a forensic scientist employed by the Springfield crime lab in the DNA unit extracted DNA from the evidence received, including a blood sample from Heather, a vaginal swab, a swatch from Heather's underwear, a rectal swab and swatch from Jeff Stephens' sweatshirt. During his testing of the DNA, however, Metzger mistakenly exposed the DNA evidence too long to restriction enzyme, which damaged the DNA extractions to the point where they no longer were useable.

Metzger then requested additional samples and obtained Heather's underwear and the additional swabs containing semen. Metzger extracted DNA from the samples and produced four developed autoradiograms, or autorads, which indicated that the suspect DNA was inconsistent with Jeff Stephens' DNA. The suspect DNA could not be matched with anyone involved in the case at the time.

However, in April 1993, while defendant was incarcerated for the criminal sexual assault of his stepdaughter, a preliminary correlation was made between defendant's DNA and the DNA of the perpetrator in the Stephens case by State Police indexing personnel. Accordingly, blood samples were obtained from defendant pursuant to a search warrant and were sent to Metzger. Metzger ran a series of autorads with defendant's DNA. He then ran a series of autorads on defendant's DNA and the DNA from the suspect in the Stephens case, producing nine autorads. All nine autorads showed a match between defendant's DNA and that of the perpetrator in the Stephens case. The frequency of such a match was 1 in 15 billion people.

Thereafter, defendant was charged with the crimes. Following a jury trial, defendant was convicted of first degree murder, attempted first degree murder, aggravated battery with a firearm, aggravated criminal sexual assault and home invasion. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. Accordingly, defendant was sentenced to death for the murder and was sentenced to concurrent prison terms of 60 years for the remaining offenses. On direct appeal, this court affirmed defendant's convictions and sentences. People v. Hickey, 178 Ill. 2d 256 (1997). The United States Supreme Court denied defendant's petition for writ of certiorari. Hickey v. Illinois, 524 U.S. 955, 141 L. Ed. 2d 742, 118 S. Ct. 2375 (1998).

Defendant then filed a pro se petition for post-conviction relief and a motion for appointment of counsel. After counsel was appointed, defendant's attorneys filed a motion to preserve DNA evidence, which was granted. Defense counsel also served subpoenas on the Will County sheriff and the State Police. Counsel filed an amended petition for post-conviction relief and filed a motion to produce DNA evidence. The State filed a motion to dismiss the amended post-conviction petition on the ground that the matters raised therein either were matters of record or did not raise issues of constitutional magnitude. Defendant then filed a second amended post-conviction petition. The trial court denied defendant's discovery motion, quashed his subpoenas, and dismissed his second amended post-conviction petition without an evidentiary hearing. The trial court later denied defendant's motion to reconsider. The instant appeal followed. 134 Ill. 2d R. 651(a).

ANALYSIS

The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1998)) provides a defendant with a means through which he can challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill. 2d 372, 377 (1997). An action seeking post-conviction relief is a collateral proceeding and not an appeal from the earlier judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). To be entitled to post-conviction relief, a defendant must demonstrate a substantial deprivation of federal or state constitutional rights in the proceedings that produced the challenged conviction or sentence. People v. Morgan, 187 Ill. 2d 500, 528 (1999). The scope of post-conviction relief is limited, through considerations of waiver and res judicata, "to constitutional matters which have not been, and could not have been, previously adjudicated." People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, issues that a defendant raised in his appeal of the underlying judgment of conviction, or issues that could have been raised but were not, generally will not be considered in a post-conviction proceeding. People v. West, 187 Ill. 2d 418, 425 (1999).

A defendant is not entitled to an evidentiary hearing on his post-conviction petition as a matter of right. People v. Whitehead, 169 Ill. 2d 355, 370-71 (1996). An evidentiary hearing on a post-conviction petition is warranted only where the allegations of the post-conviction petition, supported by the trial record or accompanying affidavits where appropriate, make a substantial showing that a defendant's constitutional rights have been violated. Morgan, 187 Ill. 2d at 528. All well-pleaded facts in the petition and accompanying affidavits, if any, are taken as true for the purpose of determining whether to grant an evidentiary hearing. People v. Brisbon, 164 Ill. 2d 236, 244-45 (1995). This court reviews a circuit court's determination regarding the sufficiency of allegations in a post-conviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

At the outset, we observe that with regard to each issue raised by defendant, the State maintains that defendant has waived that issue because he did not raise the issue on direct appeal, nor does he now claim that his appellate counsel was ineffective for failing to raise those issues on direct appeal. Although any issue that could have been presented on direct appeal but was not is deemed waived, the doctrine of waiver will be relaxed where fundamental fairness so requires, where the facts relating to the claim do not appear on the face of the original appellate record, or where the alleged waiver stems from the incompetence of appellate counsel. People v. Hobley, 182 Ill. 2d 404, 428 (1998). Upon review of the pleadings and record in this case, we agree with the State that defendant has waived the issues raised on appeal because those issues could have been raised in his direct appeal. However, because defendant makes the claim that due to the trial court's rulings, his post-conviction counsel could not determine whether defendant's trial and appellate counsel were ineffective, we will examine those issues under principles of fundamental fairness.

I. Discovery

Defendant first contends that he was denied due process of law when the trial court denied his production requests and quashed his subpoenas. Defendant argues that the trial court's ruling denied him a chance to investigate and present his post-conviction claims, such that his post-conviction counsel could not certify in good faith that they had performed the duties imposed upon them by Illinois Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)).

Defendant had filed a motion to produce DNA evidence requesting the vaginal swab which formed the basis of comparison to defendant's DNA sample. Defendant also sought items of evidence recovered in the case which had not been tested, including vaginal smears on slides from the rape kit, Heather's blood sample, a Kool cigarette butt, and Heather's robe and terrycloth gown. Defendant later amended his motion to produce DNA evidence to request a sample of his blood taken in connection with his arrest for the sexual assault of his stepdaughter. Defendant also served a subpoena duces tecum on the Will County sheriff seeking evidence logs which would show the chain of custody of the DNA evidence and of defendant's blood sample. In addition, defendant served a subpoena duces tecum to the State Police seeking David Metzger's complete personnel file. The circuit court denied defendant's discovery requests and quashed the subpoenas to the Will County sheriff and the State Police.

Defendant contends that the trial court committed reversible error in violation of his constitutional rights when it quashed his subpoenas and denied his discovery requests. Defendant claims that based upon Heather Stephens' description of the perpetrator, as well as the composite sketch prepared based upon Heather's description, he cannot be the offender in this case. Defendant argues that the DNA evidence in this case, which was critical to his conviction, is suspect in light of Metzger's destruction of the first samples and Metzger's "fortuitous" discovery of additional samples. Defendant also questions the State's failure to test all the evidence in this case, including Heather's robe and a Kool cigarette butt. Defendant notes that Heather had initially told police investigators that the perpetrator had ejaculated onto her robe, although at trial she testified that although she first thought the perpetrator did not ejaculate inside her, when she went to the bathroom later, she saw what looked like sperm coming from her vagina. Defendant also notes that neither Heather nor Jeff were smokers, and defendant smoked only Camel cigarettes.

In addition, defendant claims he should have been permitted to investigate Metzger's background in light of Metzger's destruction of the first samples in this case and the fact that Metzger had been disciplined by the State Police shortly before he testified in this case. Finally, defendant claims that his post-conviction counsel had a duty to investigate the possibility of tampering with regard to his blood sample. Defendant states that the Will County sheriff had taken two samples of his blood in connection with the sexual assault of his stepdaughter, and suggests that the Will County sheriff may have substituted those samples with that of the offender in the Stephens case. Defendant argues that his production requests were proper given that the State has the exclusive control and custody of unexamined items of crime scene evidence.

Although neither the civil nor criminal discovery rules apply to post-conviction proceedings, a circuit court nonetheless has inherent discretionary authority to order discovery in post-conviction proceedings. People v. Fair, 193 Ill. 2d 256, 264 (2000). However, because post-conviction proceedings afford a defendant only limited review, and because there is an opportunity for abuse of discovery, a circuit court must be cautious in the exercise of its authority to order discovery. People v. Enis, 194 Ill. 2d 361, 415 (2000). A circuit court, then, should allow discovery only if the moving party has demonstrated "good cause" for the discovery request. Fair, 193 Ill. 2d at 264-65. Consequently, this court has upheld a circuit court's denial of a defendant's discovery request where that request went beyond the limited scope of post-conviction proceedings and amounted to, in essence, a "fishing expedition." Enis, 194 Ill. 2d at 415. A circuit court's denial of a request for discovery in a post-conviction proceeding will not be reversed absent an abuse of discretion. Fair, 193 Ill. 2d at 265.

Upon review, we find that the circuit court did not abuse its discretion in denying defendant's discovery requests. Although defendant claims that his discovery requests were narrow and circumspect, we find that the requests amounted to nothing more than a fishing expedition. Post-conviction proceedings are limited to considerations of constitutional matters which have not been, and could not have been, previously adjudicated. People v. Winsett, 153 Ill. 2d 335, 346 (1992). Here, the evidence requested by defendant was known to exist at the time of trial, and the questions regarding the evidence raised by defendant in support of his discovery requests were all raised at defendant's trial.

For example, police officers testified and were cross-examined concerning the chain of custody of the evidence in the case, as well as the chain of custody regarding the samples taken from defendant. With regard to the testing of evidence, an employee of the State Police crime lab testified that the State Police works on a deferred examination system with regard to evidence, meaning that when there is a lot of evidence in a case, the crime lab examines the best evidence first, then tests additional evidence if further testing is needed. In addition, Metzger testified and was cross-examined concerning his destruction of the first samples in this case, as well as his testing of the additional samples. Defendant's two expert witnesses criticized Metzger's testing of the DNA samples, including his destruction of the first samples. Defendant's experts also testified that Metzger's results matching defendant's DNA to that of the perpetrator in the Stephens case were not reliable.

Defendant, however, denies that the discovery requests were a fishing expedition, and argues that the discovery was necessary in order for his post-conviction counsel to determine whether defendant's trial counsel and appellate counsel were ineffective. Likewise, defendant argues that his post-conviction counsel could not certify that they had made the necessary amendments to defendant's pro se post-conviction petition without the requested discovery. This, however, is exactly the sort of fishing expedition that is not permitted in post-conviction proceedings.

In support of his claim, defendant cites this court's recent decision in Fair. In Fair, the defendant was convicted of two murders and was sentenced to death. Fair, 193 Ill. 2d at 259. Following the defendant's conviction, it was discovered that the judge who had presided over the defendant's trial and sentencing had engaged in extensive criminal conduct and corruption during the time before and after the defendant's trial. Fair, 193 Ill. 2d at 260. This court held that the defendant was entitled to discovery of evidence obtained by the Cook County State's Attorney during the investigation of the trial judge in order to establish a nexus between the judge's criminal conduct and the defendant's trial. Fair, 193 Ill. 2d at 267. We noted that because the trial judge had pled guilty, all the evidence concerning the judge's criminal conduct was in the exclusive control of the State, and it would be virtually impossible for the defendant to establish a nexus between the judge's criminal conduct and the defendant's trial without access to that evidence. Fair, 193 Ill. 2d at 266.

We find this case to be distinguishable from our decision in Fair. As noted, the fact of the judge's corruption in Fair was not discovered until some time after defendant had been convicted and sentenced. Here, in contrast, all evidence sought by defendant in his motion for DNA evidence and in his subpoenas was available at the time of his trial. Defendant's subpoenas and discovery requests, then, went well beyond the limited scope of a post-conviction proceeding and, therefore, were properly denied.

Defendant also claims that the trial court's decision in this case was "contrary to the spirit, if not the letter, of" an order this court entered in People v. Enoch, Nos. 59390, 70254, 83298 cons. (November 17, 1998). In the order, this court allowed the defendant's motion for stay of execution and remanded the cause to the circuit court. In addition, the State was ordered to produce the underlying data for DNA testing in the case and to provide access to evidentiary material for independent testing.

In defendant's motion for reconsideration, he attached the relevant pleadings from the Enoch case to establish the similarities between that case and his case. We have reviewed the pleadings in that case and disagree with defendant that his case is similar. In Enoch's case, DNA technology was not available, and thus was not done, at the time of defendant's trial. In addition, in late 1996, defense counsel noted that a critical piece of evidence used against the defendant at his 1983 trial, a bloodstained and sweat-stained shirt, was missing a swatch of fabric from the underarm. The State admitted that the swatch had been taken from the shirt before the defendant's 1983 trial, but denied the defendant's request to perform DNA tests on the sweat stains. The defendant's counsel had argued that the swatch of fabric constituted newly discovered evidence supporting a claim of actual innocence.

Here, in contrast to the Enoch case, DNA testing was performed on the evidence at issue in defendant's trial. Further, the evidence requested by defendant in his motion to produce, in contrast to the evidence at issue in People v. Enoch, was known to exist at the time of defendant's trial. Consequently, the trial court in this case did not violate the spirit of this court's order in People v. Enoch when it denied defendant's discovery request.

We note, however, that defendant suggests that the trial court committed reversible error because it did not allow defense counsel to investigate defendant's claim that he is actually innocent. Claims of actual innocence under the Post-Conviction Hearing Act require that the supporting evidence be "new, material, non-cumulative and, most importantly, ` "of such conclusive character" ' as would ` "probably change the result on retrial".' " People v. Washington, 171 Ill. 2d 475, 489 (1996), quoting People v. Silagy, 116 Ill. 2d 357, 368 (1987), quoting People v. Molstad, 101 Ill. 2d 128, 134 (1984). Thus, in Washington, this court found that the defendant's claim of newly discovered evidence could be raised in the defendant's post-conviction petition to entitle the defendant to a new trial. Washington, 171 Ill. 2d 475. The newly discovered evidence was the affidavit of a woman who testified that she had been present when her then boyfriend and a friend had shot the victim and had fled to Mississippi for six years following the murder. Washington, 171 Ill. 2d at 477.

Although defendant in this case alleges that the evidence requested in his discovery motions and subpoenas may go to a claim of actual innocence, we note that none of the material sought was new, material and non-cumulative. Nor can we say that the materials sought were of such conclusive character that it likely would change the result upon retrial. Even though defendant suggests problems with contamination of the second sample sent to Metzger and suggests tampering with his blood sample, he offers no evidence in support of these claims. Nor does defendant establish how questions concerning Metzger's methods and qualifications would change the result upon retrial. As noted, two expert witnesses testified at trial on behalf of defendant criticizing Metzger's methodology, qualifications and conclusions. Because defendant has failed to show that his discovery requests were necessary for the litigation of constitutional claims that were not presented in the original proceedings, the trial court properly denied those requests.

II. Testimony of Prosecution DNA Expert

Defendant next contends that his amended petition for post-conviction relief raised numerous Brady violations with regard to the testimony of David Metzger, the State's DNA expert witness. Defendant claims that the prosecution violated Brady where it: (1) permitted Metzger to testify falsely concerning his qualifications; (2) suppressed evidence that Metzger had been reprimanded in the past for sloppy or unprofessional work; and (3) suppressed Metzger's written statement to the Will County sheriff explaining how he had destroyed the first DNA samples. These claims arise from information contained within Metzger's personnel file. Prior to Metzger's testimony, defendant had moved for the disclosure of Metzger's personnel file. The trial court reviewed Metzger's personnel file in camera, but stated that it found no impeaching information that required the file to be turned over to the defense. The trial court stated, however, that it would impound the file and include it in the record.

Included within Metzger's personnel file was information regarding a disciplinary incident. Metzger had been charged by the State Police with stealing a microscope in January 1995. In May 1995, Metzger entered into a settlement agreement with the State Police, which provided that Metzger would receive a 100-day suspension without pay, would perform 120 hours of community service, would forfeit his accrued vacation time, and during the period of his suspension, would contact the research and development program coordinator each day by telephone and would not access work facilities without an escort. Shortly after he had returned to work following his suspension, Metzger testified in this case.

In Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the United States Supreme Court set forth the government's affirmative duty to disclose evidence favorable to a defendant. The general rule, as set forth in Brady, provides that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. A defendant is not entitled to relief under Brady unless he can establish that the evidence improperly withheld was both favorable to the defense and material.

In this context, favorable evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). A reasonable probability that the result of the proceeding would have been different is a "probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. Ct. at 3383.

With regard to defendant's claim that Metzger testified falsely, defendant claims that the materiality element of Brady is met where the prosecution's case included perjured testimony. Specifically, defendant contends that Metzger committed perjury when he testified that he was a DNA research coordinator and had held that title for the previous five years, and when he testified that he had been continuously employed by the State Police for the previous 14 years. Defendant alleges that Metzger must have been demoted to the position of DNA research coordinator, because the personnel file showed that Metzger had held more senior positions, including forensic science administrator and public service administrator, shortly before he testified. In addition, defendant argues that Metzger had not been continuously employed by the State Police for the previous 14 years because he had just returned to work following a 100-day suspension.

It is well established that the State's knowing use of perjured testimony in order to obtain a criminal conviction constitutes a violation of due process of law. People v. Olinger, 176 Ill. 2d 326, 345 (1997). If there is any reasonable likelihood that the false testimony could have affected the jury's verdict, a conviction obtained through the knowing use of perjured testimony must be set aside. Olinger, 176 Ill. 2d at 345, citing People v. Bagley, 473 U.S. 667, 678-80, 87 L. Ed. 2d 481, 491-92, 105 S. Ct. 3375, 3381-82 (1985). Likewise, where the State allows false testimony to go uncorrected, the same principles apply. Olinger, 176 Ill. 2d at 345, citing Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). However, the State's obligation to correct false testimony does not amount to an obligation to impeach its witnesses with any and all evidence bearing upon their credibility. People v. Pecoraro, 175 Ill. 2d 294, 312-14 (1997).

Contrary to defendant's claim, we find no evidence in the record that Metzger committed perjury when he testified that he had been a DNA research coordinator for the past five years. Although defendant notes that Metzger held the titles of forensic science administrator and public service administrator prior to testifying in this case, we note that the job descriptions of both positions were virtually identical, providing in relevant part that Metzger "coordinates statewide integration of genetic marker (DNA) technology into the forensic serology program; [and] coordinates research efforts conducted by other forensic scientists within the specialty area." (Emphases added.) It is clear from Metzger's job ...

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